VA has higher burden of proof for PTSD claims related to sex trauma

Aug. 8, 2014 - 01:45PM
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Jamie Livingston joined the Navy in 2000 because she “wanted to be part of something bigger than myself.”

But during her seven years in uniform, she was sexually harassed and says she was subsequently raped twice, and now is fighting for disability benefits to cover the trauma stemming from her experiences — a fight that many victims of military sexual trauma suffer through, experts say.

Livingston was 19 and had just arrived at Naval Station Everett, Washington, when her direct supervisor, a chief petty officer, ordered her to perform sexual favors and “show her body” before getting the approval she needed to work on the flight deck of the carrier Abraham Lincoln.

“I didn’t report it because I didn’t want things to get worse, and I was right,” said Livingston, a former petty officer second class.

But a year later, she finally decided to report the incident as sexual harassment, and her chief was prosecuted. But in retaliation, she says she was gang-raped by the chief’s military friends.

“If I reported sexual harassment and was gang-raped,” she said, “what would happen if I reported the gang rape?”

She didn’t report it. Two years later, she says another superior officer raped her, and again she kept silent.

Livingston left the military in 2007 and is now medically retired. She was diagnosed with post-traumatic stress disorder, which she says prevents her from working, but receives only partial compensation from the Veterans Affairs Department.

“It’s really hard every month just to pay bills and have anything left over,” said Livingston, who now lives in El Paso, Texas, and told her story to NPR in March 2013.

Livingston currently has a 60 percent disability rating from VA for her PTSD and a back injury sustained during active duty.

Her rating would be higher if she could attach military sexual trauma as a secondary condition to her PTSD.

PTSD may be diagnosed secondary to an experience of military sexual trauma. However, according to Veterans Benefits Administration rules, military sexual trauma is not a diagnosis, but rather an “experience.”

As such, in order to attach MST to a PTSD claim for disability benefits, a “marker” is required to meet the burden of proof — any evidence, event or circumstance indicating that the assault occurred.

But since Livingston never reported the two rapes that she says she went through, she has been unable to establish such a marker.

Greg Jacob, policy director at Service Women’s Action Network, a nonpartisan advocacy group for women in the military, said the reality is simply that VA places “a higher evidentiary burden” on military sexual trauma claims.

“What we’re seeing is VA adjudicators are denying women’s claims for sexual trauma at a greater rate than other PTSD claims,” Jacob said.

According to a report released by the American Civil Liberties Union, the acceptance rate for PTSD/MST claims were about 17 percent to 30 percent lower than for PTSD claims unrelated to MST.

“One of the issues with military sexual trauma is individuals often don’t report that they’ve experienced a stressor,” a VA official acknowledged. “So there isn’t often evidence that a stressor has occurred.”

Livingston is not yet ready to give up, though. “I’ve been appealing and I’m continuing to appeal the claim,” she said. “I want it correct so the records are correct.”